Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

27 September 2010

Unavoidably Delayed Sausages

Anybody want a couple of teenagers? Well, I guess technically I should say a teenager and a college student, since the elder remora is now twenty, and we really don't need to get into the parallel argument about whether the current millennium began in 2000 or 2001, and thus whether the "teenaged years" extend to nineteen or twenty...

Here's yet another reason to avoid cloud computing, especially for writers: a government push for easier 'net wiretapping. Just stop and think for a moment about material contained in research notes, in the dialog attributed to fictional villains in early drafts... and the difficulty that humans have — let alone that datamining programs will have — interpreting sarcasm on the 'net. And, of course, that need not limit itself to apparent overt statements, either.

Overall, I understand the organizational impulse to seek more, and more private, information on every person, and to do it as silently as possible. And it's not limited to governments by any means; just what do you think a tracking cookie is? That I understand it, though, does not mean that I defend it, and particularly that I defend its used without a warrant.

“There’s this American flag, apple pie thing about libraries,” said Frank A. Pezzanite, the outsourcing company’s chief executive. He has pledged to save $1 million a year in Santa Clarita, mainly by cutting overhead and replacing unionized employees. “Somehow they have been put in the category of a sacred organization.”

Yeah, that's right: Unions are the cause of the problem, as is "overhead" — usually code in these situations for replacing full-time employees who get benefits with part-time employees who don't, regardless of unionization. Later in the article, the same moron claims that librarians "can go to a library for 35 years and never have to do anything and then have your retirement" — which, given the workload of librarians, is a shockingly ignorant conclusion. I could make the same observation about CEOs... only for them, it doesn't take 35 years to retirement; usually 18 months is enough to get a nice golden parachute with a far higher market value.

Ultimately, this reflects a fundamental misunderstanding of libraries. By their nature, libraries are not supposed to be efficient; they are, instead, repositories of as much knowledge (and as much fiction!) as possible, not clones of chain suburban bookstores. That's not to say that there's no place for efficiency in libraries at all — in dealing with an increasingly consolidated publishing and distribution system, efficient and consolidated ordering is a necessary pushback — but that unlike many other governmental and quasigovernmental services, elevating efficiency to a high priority is inconsistent with the very nature of the enterprise... just as it is with the military. In particular, one wonders how corporatizing libraries will deal with banned books...

Speaking of attacking unions, consider The Hobbit — now not filming in New Zealand, or at least potentially so. The problem here is most emphatically not Peter Jackson's treatment of cast and crew; it is New Line's, countered by a union that is trying to impose old-school work rules and terms on new-school production systems. The production companies, as a rule, don't want to share anything with the cast and crew, in the name of increasing shareholder profits by controlling costs. Conversely, the unions don't want to take anything on spec, given the historical probability (and, particularly for this combination of producer and distributor, actual incidence) of fraud to the detriment of everyone.

The obvious problem is that when no film gets made, there are no profits to share — and not just no H'wood accounting profits. When there are no profits, there is no work for anyone. Ultimately, the existing financial/economic model — with denizens of the Mogul Vale on one side, opposed by a horde of selfish Sackville-Bagginses on the other — simply fails; it was imported from a second-best solution to abuses of factory laborers, and presumes good faith on both sides (and particularly on the part of the unions — since settled) without any evidence thereof.

As if Harry Potter wasn't enough demonstration that publishing "winners" are built not through consistent, small profits spread across the entire list, but upon blockbusters, the publisher of Stieg Larsson's posthumous Millennium Trilogy reports big revenue gains. This is, in many ways, the industrial counterpart to the item above on libraries, and it reflects a critical fact that is too often ignored: Books are not fungible commodities. If a particular barrel of North Sea light crude, recently spot-priced at $78.14, doesn't satisfy me, I have two choices: Obtain a replacement barrel with the same specifications, or change the specification. The problem with books is that they don't have the same specifications; Morrison & Boyd's textbook on organic chemistry is not a satisfactory substitute for Gutsche's textbook on organic chemistry (the one I used... since Gutsche was my instructor), or vice versa, just as Larsson's trilogy and, say, the short novels of Dashiell Hammett cannot substitute for each other.

A priceless headline from the BBC demonstrates more problems with economic presumptions: "France's Dati confuses inflation with oral sex." Perhaps this almost literally Freudian slip, though, demonstrates what economic leaders want more than we otherwise admit...

SFWA's president, in his personal capacity, hones in on one aspect of the Henderson Moment of Madness: failure to admit ignorance. In a larger sense, this reflects a great deal of the problem with punditry in general — the incorrect transference of (relatively) intensive knowledge of one aspect of something into authority in a related, or unrelated, area.

The Henderson instance is an excellent example, and relates specifically to one of the principle failings of legal ethics: Rule of Professional Conduct 7.4, which prohibits attorneys from claiming to be specialists absent a "certification." Even though they are — and, particular to this little internet brouhaha, there's no question that Professor Henderson is. Bluntly, Professor Henderson's problem is one that is extraordinarily common among both academics and lawyers: He personally identifies with the subjects of his study and with his clients. As a respected scholar on business organizations, Professor Henderson's subjects of study (and clients) are "rich" by most measures... and yet, because he's still himself a "wage slave" and not an entrepreneur, he does not completely share the characteristics of those he perceives as "rich" from his work.

This is a human failing, and arises from the distinction between group self-identification and the perceptions of that group by nonmembers. Back in my long-ago undergraduate days, I was all too often called a "babykiller" on ROTC uniform days on my relatively liberal campus... it was, after all, only a couple of years after the Church Commission Report and the fall of Saigon. When living overseas, we had problems with the locals assuming that all military officers were Reaganites with one finger on The Button, coming from upper-class backgrounds and interested only in oppressing the masses. (OK, they got one out of three right.)

In this particular instance, there's a two-way cycle of ignorance. On the one hand, Professor Henderson demonstrated ignorance of what "rich" means in a nontechnical sense (and some ignorance of good prose style and clear communication, but we all have that problem at times). One can argue that he demonstrated ignorance of what "rich" means in a technical sense — economists would classify anyone with his asset base and cash-flow base as inside the top five percent of the domestic economy, which definitely qualifies as "rich" for both general and technical purposes. One can even argue that he demonstrated some ignorance relevant to his professional work... but, again, we all do at times (I've made mistaken statements concerning copyright law at times; I'm a fallible human being). Unfortunately, Professor Henderson's own ignorance was reinforced by the converse cycle of those who do not understand that "rich" is as much a psychological state as a numerical one — just ask Elizabeth Bennet — and who then proceeded to overload the definition of "rich" in a positive feedback loop to his detriment. Much of this comes from the mistaken assumption that "rich" is congruent with "is The Boss and has Minions," but that's an argument for another time; when I was on active duty, I was The Boss and had Minions (hundreds of them), but I certainly wasn't "rich."

My point here is that ignorance can be fixed, but it seldom gets fixed in the face of personal attacks. In this instance, there's a difference between shopping at Wal*Mart because it's convenient and because it's necessary... or the converse of shopping on Main Street because it's convenient or because one can't afford a car to get to the outlying discount stores, and the bus routes make getting large/refrigerated items home nearly impossible (presuming, of course, that one can afford the bus fare, which is usually more than the cost of a calorie infusion at McZorgle's these days). Thus, both sides lose, because by making things into personal attacks, they lost the ability to educate others on this issue.

I'm going to close with a semieditorial comment. This week marks the annual end of mob rule: The Supreme Court's "long conference", shortly before the Court returns to session on the first Monday in October. This promises to be one of the most fractured terms in memory, primarily because newly confirmed Justice Kagan is recusing herself in so many matters... which, in turn, substantially increases the chance of 44 (nonprecedential) splits and controlling plurality (as opposed to majority) opinions on a lot of issues that are less-ideologically-clear-than-usual, such as the minutiae of civil procedure. This may well undercut the Court's authority in the short term, but might actually prove a blessing in disguise in the long term.

The key problem here is that the Court is still not taking a lot of matters that have created circuit splits on matters of substance, primarily because the litigants just cannot get the matter clearly stated and in front of the Court on a reasonably replicable set of facts. For example, the continuing three-way split among the Sixth, Second, and Ninth Circuits on the proper way to determine whether two works are "substantially similar" will remain unresolved for the forseeable future; so, for that matter, will the question of whether the Sixth/Second Circuit approach to defining what a copyrightable interest continues to diverge from the Seventh/Ninth Circuit approach, particularly for derivative works. These are just issues that are obvious/important to me due to my own interests; I'm sure that others would have different lists.

I therefore call on the Court to take a broader view of what matters deserve its attention, particularly when the doctrine and facts are murky and call for real judgment and not just ideological pronouncements. That may be a futile call — nobody expects to return to the pace of calendar year 1946, when the Court issued 139 opinions despite Justice Jackson's participation in the Nuremberg trials, compared to the calendar year 2009 count of 86 matters with opinion, several of which were consolidated. However, the claim that there are fewer cases taken because the law is getting better and clearer is inconsistent with the number of cases filed in trial courts (federal and state) and appealed (ditto).

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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